After that ruling, the prosecutor moved to reopen the state's case. In
support of the motion, the prosecutor asked to provide a certified copy of the prior
conviction, which she evidently had in hand, "for the sake of preserving this case and this
record." The trial court denied the motion to reopen, and gave two reasons for doing so.
First, in the trial court's view, the prosecutor's mistake about defendant's pretrial
stipulation was her own. Second, the trial court concluded that placing the prior
conviction before the jury, if that conviction is relevant only as a sentencing factor, would
be highly prejudicial and defendant might have "an excellent appeal" of his conviction.

"By remanding this case to the trial court for reconsideration of its
denial of the state's motion to reopen, this court is sending this case back to
a point in time before the trial court ruled on defendant's sufficiency of the
evidence motion. Therefore, any instruction from this court for the trial
court to grant defendant's motion for a judgment of acquittal would be
premature."

(Emphasis in original.) The state concludes by asking us to reverse the judgment of the
trial court and to remand for reconsideration of the denial of the state's motion to reopen
its case.

We therefore do not consider the issue raised by the state's cross-assignment
of error. On defendant's assignment of error, we accept the state's concession that the
trial court erred by denying the motion for judgment of acquittal on the charge of felony
VSPO. We further agree with the state that the evidence is sufficient to establish
defendant's guilt of a misdemeanor VSPO. Consequently, we remand for entry of a
conviction on the misdemeanor offense.

Reversed and remanded for entry of conviction of misdemeanor violation of
court stalking protective order.

1. The stipulation to which the prosecutor referred is not part of the record. From
the colloquy between the trial court and counsel, it appears that defendant stipulated only to the
existence and validity of a prior stalking protective order against him, not to a prior conviction
for violating that order.

2. See also State v. Hambrick, 189 Or App 310, 314-16, 75 P3d 462 (2003)
(defendant may not remove from jury's consideration the factual issue of whether he was
previously convicted of assaulting the same victim for purposes of elevating fourth-degree
assault to a felony by stipulating to the prior conviction); State v. Hess, 189 Or App 325, 326, 75
P3d 469 (2003), rev allowed, 337 Or 84 (2004) (following Hambrick with respect to elevating
crime of public indecency to a felony based on prior convictions for public indecency).

3. For present purposes, we put to one side the possible question whether the state is
entitled to cross-assign error to an intermediate ruling of this kind when, as here, the state has no
ability, independent of defendant's appeal, to appeal the judgment or seek appellate review of
intermediate procedural rulings in the case. See State v. Cervantes, 319 Or 121, 124 n 3, 873 P2d
316 (1994) (reserving the question whether the state may cross-assign error in analogous
circumstance).

4. The state may be taking that tack to avoid a likely double jeopardy bar to
defendant's retrial. See Burks v. United States, 437 US 1, 17-18, 98 S Ct 2141, 57 L Ed 2d 1
(1978) (when a trial court denies a motion for judgment of acquittal and reviewing court
determines that evidence is legally insufficient to support conviction, federal Double Jeopardy
Clause bars any retrial of the charge).